2314404 (Refugee)

2314404 (Refugee) [2023] AATA 4705 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2314404
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:David James
DATE:31 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2023 at 11:26am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – threats due to land dispute – threats, bodily harm from opposition party – no state protection – unable to relocate – no response to tribunal communication – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 424A, 425(3), 499,
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Prasad v MIEA (1985) 6 FCR 155
SZRQA v MIBP [2013] FCA 962
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of the Republic of Vanuatu (Vanuatu), applied for the visa on 7 August 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 14 September 2023. The applicant did not provide a copy of the delegate’s decision with their application for review.
The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vanuatu they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents considered by the Tribunal:
·The applicant’s protection visa application, submitted on 7 August 2023 and the annexed copy of the applicant’s bio data page of the applicant’s Vanuatu passport;
·The applicant’s application for review, submitted 14 September 2023; and
·The administrative and movement records of the Department relating to the applicant.
Claims for protection
The applicant, in his visa application, outlined his claims for protection (in summary) as being that:
·He left his country because of threats due to a land dispute;
·He has been harmed by threats and bodily harm from the opposing party due to him cursing them;
·He has sought help from relatives, church leaders and police and he has moved or tried to move to another part of the country to seek safety;
·He moved out of the country through seasonal work so that he would not experience threats all the time, and that is why he moved to Austrlia so he can wait for this situation to cool down a bit;
·He fears further threats, harm and/or mistreated if he returns to Vanuatu from the opposing party, as in accordance with Melanesian law, he should have settled this dispute through compensation, but he does not have the money to do so;
·The police will not protect him everyday as they have other things to do; and
·Although he can still relocate to some other province within Vanuatu, they will find him.
Department interview
The applicant was not offered an interview by the Department.
Delegates decision
The delegate’s decision of 24 May 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant would be able to avail himself of effective state protection on any return to Vanuatu should he need to do so. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. In that regard, the delegate found that the applicant could obtain protection from an authority of Vanuatu, such that there would not be a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 13 October 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 31 October 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Invitation to comment on or respond to information
On 9 October 2023, the Tribunal wrote to the applicant pursuant to s 424A of the Act, inviting the applicant to respond and/or comment on the delegate’s decision of 6 September 2023. The invitation was sent to the last address provided in connection with the review, and advised that if the response and/or comments were not provided in writing by 23 October 2023, the Tribunal may make a decision on the review without taking any further steps to obtain the applicant’s comments and/or response to the delegate’s decision, and that the review applicant would lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.
Cancellation of hearing of 31 October 2023
The review applicant did not respond and/or comment on the information within the prescribed period (by 23 October 2023) and no extension was requested by/or granted to, the applicant. In these circumstances, the Tribunal, noting that s 424A(1)(a) and (b) of the Act were satisfied, has exercised its discretion to make a decision on the review without taking any further action. The Tribunal in this regard, noting that the section uses the word ‘may’ notes that in Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, the court found that the combined effect of this section with s 425(3) of the Act, is that an applicant loses his or her right to appear before the Tribunal.
The applicant’s claims do not provide any detail as to any actual incidents of the applicant being subjected to threats and/or harm, and the applicant has also not identified from whom he had been so threatened or harmed, or what (if any) contact he has made with the Vanuatu police in relation to these alleged threats and incidents of bodily harm. The Tribunal, having also considered the relevant country information, has therefore decided to proceed to a decision without taking any further steps to obtain the applicant’s response and/or comments to the information, or to have the applicant appear before the Tribunal to give evidence and present arguments.
Therefore, on 24 October 2023, the Tribunal wrote to the applicant informing him that, as he had not responded to the Tribunal’s invitation to comment and/or respond to the delegate’s decision, the Tribunal had cancelled his scheduled hearing that had been listed for 2 November 2023 and would proceed to make a decision based on the information currently before the Tribunal.
Country information
In the Australian National University’s ‘The Vanuatu-Australia Policing and Justice Services Study of May 2023’, it was reported that:
Australia has provided assistance to the Vanuatu Police Force (VPF) since the early 1990s and to the justice sector since the mid-1990s. The two programs were combined in 2014, and the current program — the Vanuatu-Australia Policing and Justice Program (VAPJP) — is in its second phase, with the design updated in 2020 to map out Australia’s continued support. The end of program outcomes for the VAPJP are: improving the quality and reach of justice and policing services; women, children and youth increasingly accessing state policing, justice and community services; and policing and justice agencies continuing to maintain public security and the rule of law.
As a baseline study for the VAPJP, a telephone based survey of 1016 adults and nine focus groups with 91 participants was conducted in 2022. The key results from this study form the body of this report, along with key implications and recommendations that emerged from the study. Key findings Perceptions of safety…
More than 90% of respondents felt very or somewhat safe while at home in the daytime or night and while walking around the community in the daytime. Fewer people (84.2%) felt safe at the weekend, while walking around the community at night (72.7%), or during big celebrations (55.5%).[1]
… Not many respondents (13.8%; n=140) indicated they had been a victim of crime in the past 12 months. The most common crime in the past 12 months was assault (23.6%), followed by threatening behaviour (16.4%) and theft (15%). Domestic violence was the fourth most common.
Just under half (45%) of this small cohort had not reported being a victim of crime to the police. Reasons for not making a formal report or statement to the police included dealing it with themselves (44.4%) and that the crime was not important (28%). Statistical analysis revealed no significant differences by age, gender or other socio-demographic variables. Approximately two-thirds of survey respondents — between 62.2% and 69.6% — believed police have improved in the past two years across six police functional areas, including providing appropriate services to victims of domestic/family violence and keeping communities safe. Criticisms of the police were made in every focus group, with young people talking about poor relations between young men and police, and poor behaviour by the police often resulting in violence by police towards young men…[2]
More than half of the survey respondents in the current study said it was either very easy or somewhat easy to access police services when they needed them, but one in 10 did say they were inaccessible. What was apparent from the survey results and focus group discussions was that the police are often only called upon when their assistance is needed because the matter is important or they are the only ones seen as being able to deal with the particular crime or situation. In many cases the police are being contacted by phone — to report a crime or to contact them for other matters — and it is not known from the responses whether the call was answered or whether the police responded appropriately and in a timely fashion. Certainly, in the focus groups, there were complaints about having to fund the police to visit a village or community, and their slowness to respond to and progress the case. When the police do respond to a request for assistance, the survey indicates that most people are satisfied with how they handle an enquiry or a report of a crime. The majority (65.9%) of those who had contacted the police in the past year were satisfied or very satisfied with the way police handled their enquiries. There was a slightly lower proportion of respondents (52%) who had reported a crime who were either very or somewhat satisfied with the way the police addressed the report. Although there were some positive comments, the most trenchant criticisms of the police were heard during the focus groups, especially from young people, in which much was said about the often-poor relations between young men and police, with instances of bullying and undue physical force by police being referred to.[3]
[1] ‘The Vanuatu-Austrlia Policing and Justice Services Study’, May 2023, Putt & Dinnen, Department of Pacific Affairs, Australian National University at page 1
[2] Ibid at page 2.
[3] Ibid at pp 37 and 38.
As to the Judiciary in Vanuatu, the United States Department of State in their report on human rights practices in Vanuatu in 2020, reported that:
There is an independent ands impartial judiciary for civil matters, including human rights violations. The government, including police, generally complied with court decisions on human rights violations.[4]
[4] ‘Country Reports on Human Rights Practices for 2022 – Vanuatu’, US Department of State, 20 March 2023, p 4.
This report also noted that the Vanuatu Constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and that the government generally observed these requirements.[5]
[5] Ibid at pp 2 & 3.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to his protection visa application, the applicant claims to be citizen of Vanuatu and provided a copy of his Vanuatu passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Vanuatu. Vanuatu is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[6] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish, or assist in establishing, the claim.[7] This is consistent with the established proposition that it is for the applicant to make his or her own case.[8]
[6] Section 5AAA of the Act.
[7] Ibid (with effect from 14 April 2015).
[8] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[9] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[10]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[9] Fox v Percy (2003) 214 CLR 118
[10] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11] A similar approach is taken in the Department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which both provide useful guidance for this Tribunal.
[11] SZLVZ v MIAC [2008] FCA 1816 at [25].
[12] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[13] UNHCR, re-issued February 2019 at [203]–[204].
Land dispute and state protection
The applicant claims that he will be threatened and bodily harmed from an identified opposing party in a land dispute if he was to return to Vanuatu.
The applicant’s claims in this regard are vague and he has not provided any particulars as to this purported land dispute, such as where this land is, who owns or claims the land, how long this dispute has been active, and with whom he is supposedly in dispute, and whether there have been any proceedings and/or determinations by the courts, the chiefs or any other traditional or institutional authority.
He also claims that he has sought help from relatives, church leaders and the police and has moved to other parts of the country to seek safety. However, he has provided no information or detail as to when, how and from whom he has sought help, what their response was, and also failed to identify these locations where and when and under what circumstances he has supposedly moved to other parts of the country. In that regard, the Tribunal notes that in his application for the visa, the applicant has only listed one address as being a past residential address in Vanuatu, namely [named] village from [year] to 2022 and from 2022 to 2023.
Additionally, the applicant claims that he should have settled this dispute in accordance with Melanesian law and made a compensation payment. However, again the applicant has provided no details as to this claim in so far as whether there have been any agreements and/or orders from a Chief or local village decision making body as to this land dispute.
Regarding the applicant’s claims that the police will not protect him, the Tribunal notes the country information outlined above at paragraphs 24 to 26 indicates that the Vanuatu police are viewed as being able to respond and assist the residents of Vanuatu in relation to disputes and criminal activity. Given the applicant has not provided any further information as to any incidents of him seeking assistance from the police and they not so assisting him, the Tribunal is not satisfied that the applicant cannot avail himself of their protection and assistance if he so requires it.
The Tribunal, for the reasons outlined above, finds that the applicant’s claims are general in nature and vague overall, without any particulars including details of alleged incidents, dates, the timing and surrounding circumstances and/or history of this purported land dispute and the supposed threats and harm that he claims to have suffered. As such the Tribunal has rejected the applicant’s claims of fear and need for Australia’s protection in their entirety as being unsupported and concocted by the applicant for the purpose of remining in Australia for other personal reasons.
Additionally, the Tribunal also notes that the applicant arrived in Australia on 5 April 2023 and subsequently made his application for a protection visa on 7 August 2023, four months after arriving in Australia. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act.
Additionally, on the information before it, the Tribunal is satisfied that the applicant could, if he so needed, avail himself of effective state protection on his return to Vanuatu. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons provided above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Vanuatu.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4705

31 October 2023

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Natural Justice

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Standing

Statutory Construction